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At the Intersection of Anti-SLAPP and Anonymity

Consider two cases: In Colorado, clothing company Façonnable is
attempting to sue an anonymous Wikipedia editor (or, possibly, more
than one; the number is sort of up in the air) over some unflattering
edits to the company's Wikipedia page. But first, Façonnable has to
figure out who the editors are--thus, a subpoena to the ISP allegedly
attached to the editors' IP address. The ISP, Skybeam, is fighting the
subpoena; CMLP's full treatment of the case is here.

Meanwhile, a couple of weeks ago the Texas Supreme Court quashed a subpoena
seeking the identities of some anonymous bloggers. Without getting too
bogged down in the niceties of Texas civil procedure, the court said
that to order this type of subpoena, a court has to rule either (1)
there would be a failure of justice without it, or (2) the likely
benefit of the discovery outweighs the harm. The plaintiff in the case
hoped to get around that requirement by cutting a deal with the company
in possession of the bloggers' identities (Google, through Blogger).
Google's response to the subponea was mixed at best,1 but the bloggers objected and finally succeeded in getting the subpoena quashed.

Neither of these cases is, at this stage, formally an anti-SLAPP situation, but at the very least the Colorado case has a distinct whiff of SLAPP.2
What I'm interested in here is the way in which anti-SLAPP legislation
can most effectively protect online anonymity, and what the different
responses of Skybeam and Google in the two cases can tell us.

In a SLAPP suit against anonymous writers, revealing the writer's
true identity is often the whole point; it doesn't do a lot of good to
let now-revealed defendants use an anti-SLAPP statute. The time for a
statute to come to the rescue is before the identity is revealed. So
with that in mind, the question becomes: who's in the best position to
fight a spurrious SLAPP subpoena seeking to reveal hidden identity, and
how can we get them to fight?

Certainly, the anonymous writers themselves can push back by
fighting the underlying lawsuit through what is hopefully a strong
state anti-SLAPP statute. And California, for example, has clear statutory language
to help SLAPP victims fight unmasking subpoenas. This is all to the
good, but I think there's a case to be made that the company recieving
the subpoena for identifying information (an ISP, or Google, or
whoever) is in a better position to fight back.

Obviously, it can be tough for a SLAPPed anonymous defendant to find a lawyer in time, let alone a lawyer who knows the ins and outs
of a state's anti-SLAPP statute/case law. Companies in businesses that
attract identity-revealing subpoenas can be ready to fight (either
through in-house attorneys or relationships with outside anti-SLAPP
experts) when a subpoena comes. So if the primary goal of anti-SLAPP
legislation is preventative, not punitive (which is hopefully an
uncontroversial statement), a would-be SLAPP plaintiff who knows he
will face well-funded corporate legal opposition is less likely to
bring the suit in the first place.

So if the company is willing to pick a fight over the subpoena, like
Skybeam is in Colorado, we end up in a good place. But if, instead, the
company makes like Google (who filed an adamantly indifferent response
to the Texas Supreme Court), we're not so lucky. Whatever the reason
for Skybeam's resolve (principle, reputation, potential liability under
its TOS), we clearly can't assume every company that gets a subpoena
for a blogger's identifying information will share it. That means
building into the anti-SLAPP system some incentives (or threats) to
spur companies to action.

Step one is to allow non-party companies subpoenaed for identifying
information to utilize an anti-SLAPP law (or something similar) that at
least would reimburse the company's legal costs. But that only gets us
so far: companies would still often decline to fight. After all, why
take the time to fight with only an uncertain chance of slight reward?
To get it right, we'll need some kind of penalty for a company who
willingly hands over information--if a defendant (now unmasked)
successfully employs an anti-SLAPP motion to strike/dismiss, the
company who caved to the demand for the defendant's identity should be
penalized. That possible liability should help with companies' standing
to fight the subpoena in the first place, too.

There are probably other ways to get at a similar effect--a few
paragraphs back I mentioned Skybeam's Terms of Service, and that could
provide another avenue. Take a look at page 22 of Skybeam's memo
on the topic: Façonnable has argued that since Skybeam's TOS allows
information to be released when required by legal process, the subpoena
should be enough to free the Wiki editors' identities. Skybeam points
out a (what seems to me obvious) flaw in that logic: the TOS only
allows release of information for legitimate requests, so if the whole
fight is over the validity of the subpoena in the first place the TOS
doesn't help. But again, that's relying on the ISP actually wanting to
put up a fight. Who could blame them for saying, "Hey man. We got a
subpoena. It's signed by a judge and everything. We had to turn your
stuff over."? We could, instead of hoping that the ISP fights, make
sure the incentives are right--some kind of beefed-up
breach-of-contract claim would do the trick there. Or, if a company too
readily turns over someone's private information, hit them with tort
liability. (There are obvious, gigantic line-drawing problems here, but
this post is already going to be long enough. I'll leave that part for
you to ponder.)

I'm sure there's some sort of market-based case to be made here, too
(something about "if people are willing to pay for privacy protection,
companies will include it in their contracts, and something about an
invisible hand") but I hesitate to put too many eggs in that basket.
Local ISP monopolies can quickly throw that off, and even with real
choice I doubt very many people would opt for a pricier
private-protection service (until they get sued, and realize it's too
late). So for effectiveness-based reasons, I'd suggest trying to
enforce that contract term.

But there's still the bigger issue of why it's OK to drag the companies into this. After all, I believe in Section 230
as much as the next guy, and I'm not looking to open too vast a field
of potential liability. But anonymous online speech matters, and we
could use some deep-pocketed corporate defendants to fight the good
fight. As I have said, a well-structured fee shifting system should
help keep costs to the companies from spinning out of control; while
that might not be a perfect solution, it's reasonable to require ISPs
to chalk up any marginal expenses as a cost of doing business. If
you're going to be in the business of profiting off of all the
excellent things the internet does, you should expect to chip in a few
bucks to defend some core principles.

This is a fine line to walk--motivate companies just enough to get
them defending against SLAPP identifying subpoenas, without freaking
them out so much that they decide anonymity isn't worth the
trouble--but it's possible. There'll be tricky bits with any method we
choose here: a company that honorably fights a subpoena and loses
shouldn't be liable if the defendant later succeeds in getting the case
tossed (which can easily happen,
with different burdens at different stages of the lawsuit); we don't
want to make it impossible for a legitimately defamed plaintiff to get
relief; &cet. All of that can be sorted out by those far smarter
than me. My point is simply this: we need serious online anonymity
protection, and to get it we need to make sure we've got big money on
defendants' side. The more we get service-providers to pick up the
slack in fighting those subpoenas, the better off we'll be.

1Google's position throughout the lawsuit has been a bit murky, as a trip through the exhibits in the case
demonstrates. Looking first at Exhibit B, we see Google saying that
once it gets the subpoena, it will "produce documents in its
possession, custody, or control, with identifying information, if any,
related to the websites at issue." Not a promising start. But Google at
the same time reserves the right to object to any requests, and
contemplates the procedure should anyone (including the bloggers)
challenge the subpoena. And in Exhibit D, we see that Google did in
fact raise some objections to the subpoena--mostly that various
requests were vague or overbroad. Those objections are pretty heavily
qualified, though: always with the disclaimer that "subject to and
without waiving" their objections, Google is ready to comply with the
subpoena. The overall impression is of Google sitting back to see what
was going to happen with the bloggers' quest to quash, at which point
the Big G would wrestle a bit over exactly which identifying documents
it would produce (not whether it should produce anything at all). For
my purposes, the takeaway is: Google was willing to sit back and let
the bloggers fight the subpoena, rather than getting involved in the
challenge itself--and that's not surprising, given the current set of
incentives.

2If you're curious, but not curious enough to wade through court filings: the beef in Façonnable v. John Does surrounds
Wikipedia edits suggesting that Façonnable and its parent company, M1
Group, have ties to Hezbollah. That's heavy stuff; as it turns out,
though, the head honcho of M1 Group is current Lebanese prime minister Najib Mikati, and as with anything involving Lebanese politics, Hezbollah is certainly part of the picture.
I'm not trying to make any comments about Mr. Mikati personally (I'm
sure he's an affable chap); I just mean to suggest that Façonnable's
case isn't exactly a slam dunk (to say nothing of their Lanham Act
claims, which [to this uneducated observer] seem like a major
stretch)...

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